Strauss Argues Kagan Should Drop 'Kagan standard" at Hearings

Why Elena Kagan should drop the 'Kagan standard' at her hearings

John F. Manning and David A. Strauss

The Washington Post

June 26, 2010

Sen. Richard Durbin (D-Ill.) is reported to have recently told Elena Kagan, "You know, you're going to have to live by the Kagan standard, which you established." He was referring to the 1995 University of Chicago Law Review article in which Kagan, then an assistant professor, made a plea for Supreme Court nominees to speak more expansively on their legal views during Senate confirmation hearings.

Kagan argued that the Senate should not limit the scope of its inquiry to questions such as character and objective fitness. Rather, because so much of judging depends on the justices' "divergent understandings of the values embodied in the Constitution and the proper role of judges in giving effect to those values," senators exercising their constitutional function of advice and consent should ask questions calculated to reveal the nominee's values. In fact, Kagan added, senators should not only ask about a nominee's judicial philosophy in the abstract but also should insist "on seeing how theory works in practice by evoking a nominee's comments on particular issues -- involving privacy rights, free speech, race and gender discrimination, and so forth -- that the Court regularly faces."

The two of us have different political allegiances, and we disagree on many legal issues. But we both hope that Elena Kagan has had a change of heart about this one. It may go too far to say, as some do, that such an in-depth inquiry into a nominee's views gravely threatens judicial independence. Justices have life tenure for a reason. And senators should, and undoubtedly will, ask Kagan about her judicial philosophy and her general approach to the Constitution.